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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 19, 2012
March 2, 2012
Record Close Date: March 5, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2012
Attorney — Student
Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2012
Attorney — Student
Parents
Mother (via telephone) — Student
Assistant Director of (via telephone) — Student
Head Teacher at (via telephone) — Student
CSE District Representative — DOE
I. PROCEDURAL HISTORY
This hearing was requested on October 11, 2011 by counsel for the student and the parent pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay costs associated with the student’s unilateral placement at the (“ a private school, for the 2011/12 school year (Ex. SD-1).[1] In an October 21, 2011 due process response, the DOE denied each and every allegation contained in the parents’ impartial hearing request (Ex. SD-2 at 1). I was appointed by the DOE to hear this matter on October 11, 2011. Hearings in this matter were held on: January 19, 2012 and March 2, 2012.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of the hearing request, the student was old and attending grade at (Exs. SD-1 at 2, SD-3 at 11, SD-4 at 1, SD-5 at 1-2, SD-6 at 1). The Commissioner of Education has not as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a impairment is not in dispute in this hearing (Exs. SD-1 at 2-3, SD-3 at 11-12, SD-4). See 34 C.F.R. § 300.8(c)(11); [8] NYCRR 200.1(zz)(11).[3] The student is diagnosed with and a (Exs. SD-1 at 2, SD-6 at 10).
The student’s is . The student reached early motor developmental milestones , walking . The student began old. The student uses
The student was evaluated by , Ph.D. in 2007. At that time, the student’s parents and teachers noticed that he during class discussions. He tasks, and . Dr. in , . Dr. also noted , which may have been indicative of an
The student entered the ”) in . He remained at through the , which had “a curriculum.” The student’s mother noted that initially, this was a wonderful placement for the student; he had , and he was as well as . By , however, the student began to . He took . Once he learned , it took him . He did not , , at the same rate as the other children in his class. By , the saw that his . He was of work he had to do at school, and he was . His parents decided to move him to a specialized school (Exs. SD-5 at 2, SD-6 at 1, SD-7 at 1).
In September 2010, the student , a full-time special education placement, for the grade. As part of the student’s curriculum at , he had . After school the student worked individually with Ms. , who is a , on (Exs. SD-5 at 2, SD-6 at 1-2).
In a letter dated November 16, 2010, and delivered on November, 17, 2010, the parent referred the student to the Committee on Special Education (“CSE”) stating, in relevant part: “I believe that my child requires special education services. This letter serves as my informed consent to initiate the evaluation process” (Exs. SD-1 at 2, SD-17, P-A).
In a Notice of Referral (Initial) dated December 8, 2010, the CSE acknowledged receipt of the parent’s November 16, 2010 referral. The only document attached to the December 8th Notice which the parent was asked to complete and return was a Request for Physical Examination Form (Ex. SD-15).
In a letter dated January 11, 2011, the CSE invited the parent to attend a meeting with the student on January 24, 2011, at which the time the student would participate in a and a (Exs. SD-1 at 2, SD-10).
In a letter dated January 21, 2011, the parent wrote to the CSE to cancel the January 24th appointment, stating that he would be out of town on business and that the student has been scheduled to be evaluated privately (Ex. SD-8 at 2).
On or about February 7, 2011, the CSE sent the parent a Notice of Withdrawal from the Evaluation Process (Initial Referrals Only). The February 7th Notice stated, among other things, that the parent had not provided his consent for evaluations by the CSE of the student (Ex. SD-13).
In March of 2011, the student was evaluated privately by , Ph.D. to clarify the pattern of his and to make decisions about appropriate services for him. Testing with the - Fourth Edition generated a verbal comprehension index (112) in the average range. The student’s perceptual reasoning ( , working memory ( ) and processing speed ( indices were in the range, as was his full scale IQ ( . The difference between his and indices was statistically significant (Ex. SD-6 at 9, 16).
The student’s basic . When he , however, his accuracy . The student knew how to return to text to find specific facts and details, but he could not consistently answer inferential questions. Dr. stated that the this weakness (Ex. SD-6 at 9).
The student’s writing reportedly followed a similar pattern. When he focused on level. When he . In addition, the student’s writing was deemed by Dr. and immature and (Ex. SD-6 at 9-10).
Dr. also noted that the student had for more , which is an amount of time. While the student did not meet the ”), his . Dr. stated that the student’s “current , social, and needs. He should remain at the ” (Ex. SD-6 at 9-10).
In April of 2011, the student was evaluated by Ms. , M.S., CCC/SLP, to determine his needs in the domain. The Test - Expanded Edition (“ -E”) was administered to evaluate the student’s higher order usage in the areas of metalinguistic competence in semantics, syntax and pragmatics. The student’s composite score of indicated that his performance significantly normal limits. This score indicated a deficit in the acquisition of The - Fourth Edition (“ was administered to pinpoint the and to make educationally relevant recommendations for intervention and accommodation. Only selected subtests of the were administered. Most of the student’s scores fell within the range. The student’s were in the areas that require coordination of ability to instructions, to hold the information in (Ex. SD-7 at 3).
The Assessment (“ was also administered to the student. The is a test of writing ability for students from ages ( ) years and above. It is a standardized, norm-referenced test that yields scores for general writing ability, productivity, word complexity and readability. Scaled scores are summed to arrive at a writing language (“ The student achieved a of placing him in the percentile rank for his age (Ex. SD-7 at 4-5).
Based on the results of her evaluation, Ms. recommended that the student receive in a small, nurturing, language-based program where skills learned in therapy can easily be integrated into his academic day (Ex. SD-7 at 6).
On April 28, 2011, the parent signed an enrollment contract with for the student to attend that school for the 2011/12 school year (Ex. P-B).
In a letter dated August 16, 2011, the parent noted that the CSE had failed to conduct any evaluations of the student and that it had failed to meet to develop a program for the student for the 2011/12 school year. Given these facts, the parent stated that he would make a unilateral placement of the student at public expense at for the 2011/12 school year. The parent also included a copy of Dr. ’s March/April 2011 evaluation with his August 16th letter to the CSE (Ex. SD-9).
On August 23, 2011, the parent signed a Consent for Initial Evaluation form and a Request for Release of Records form (Exs. SD-12, SD-14). On August 25, 2011, the parent was invited to attend a CSE meeting on September 19, 2011 (Ex. SD-11).
At a meeting held on September 19, 2011, the CSE recommended for the 2011/12 school year that the student be classified as and receive instruction in an integrated coteaching class with related services of individual therapy (Exs. SD-1 at 2, SD-3 at 12, SD-4).
III. POSITIONS OF THE PARTIES
A. The Parent
The parent is entitled to reimbursement for the student’s tuition to for the 2011/12 school year. At , the student has received specially designed instruction which meet the student’s unique learning needs. There are no equitable considerations which would mitigate against a reimbursement award and, since the DOE has conceded prong one of the Burlington/Carter standard, it is precluded from asserting a contrary argument
(R. 61-68; Ex. SD-1 at 3-4). The parent also seeks the provision of public transportation for the student to and reimbursement and/or compensatory education for related services (Ex. SD-1 at 4).
B. The DOE
The DOE concedes prong one of the Burlington/Carter standard from November 23, 2011 through June 30, 2012. The DOE also argues, however, that tuition reimbursement should be denied for the period September 1, 2011 through November 22, 2011 given the parent’s unreasonable delay in waiting until August 23, 2011 to provide the CSE with his informed written consent for evaluations after making an initial referral of the student to the CSE for evaluation and services on November 16, 2010 (R. 7-11; Exs. SD-14, SD-17).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the Individualized Education Program (“IEP”) developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Transportation
I find that the student has been improperly denied transportation by the DOE to during the 2011/12 school year (Ex. SD-1 at 4). The Education Law requires that school districts provide a disabled student with suitable transportation up to a distance of fifty
(50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law § 4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).
Consistent with this requirement, the DOE is obligated to provide the student with transportation to and from during the 2011/12 school year. The student's eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-1 at 2-3, SD-3 at 11-12, SD-4). is a nonpublic school providing the student with services and programs similar to those recommended for him by the CSE on his IEP (Exs. SD-3, SD-4, SD-6 at 1-2, SD-7 at 1, 6). The distance between the student’s home and is within the fifty (50) mile legal limit (Exs. SD-1 at 1, P-B at 1).[5]
C. Tuition Reimbursement
A board of education may be required to reimburse parents for private educational services obtained for a student, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate and equitable considerations support the parents’ claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).
For the reasons set forth below, I find that the CSE’s recommended program for the student was inappropriate and that was an appropriate placement for the student. I further find, however, that there are equitable grounds for which a reimbursement award should be reduced.
1. Public Program
At the hearing, the DOE conceded prong one of the Burlington/Carter standard from November 23, 2011 through June 30, 2012 (R. 7-11; Exs. SD-14, SD-17). Accordingly, I find in the parent’s favor on that issue.
The DOE also argues, however, that its CSE was not under any obligation to afford the student a FAPE for the period September 1, 2011 through November 22, 2011 given the parent’s unreasonable delay in waiting until August 23, 2011 to provide the CSE with his informed written consent for evaluations after making an initial referral of the student to the CSE on November 16, 2010 (R. 7-11; Exs. SD-14, SD-17). I disagree with the DOE’s analysis.
The CSE records entered into the record make clear that the reason for the delay in holding a CSE meeting (on September 19, 2011) after the parent’s November 16, 2010 intitial referal had nothing to do with the timing of its receipt of a signed consent form from the parent (Exs. SD-1 at 2, SD-3, SD-4, SD-17, P-A). In its September 19, 2011 Review Rationale, the CSE states:
Case was delayed b/c an observation was not ready for the time of the meeting and was done after the meeting and the student was not in sesis [a
DOE/CSE computer database]. It took a long time to have the student in sesis. I did not have a sesis attendance sheet at the time of the review and used the old model.
Sesis did not take in the attendance sheet, had to be faxed 3 to 4 times, partly b/c sesis command said that it had been faxed during a period when fax was not running smoothly. Parent had not returned the health form in a timely manner, IEP was very delayed to reach parent, was mailed on
12/13/11 (Ex. SD-4 at 1).
Alternatively, while the DOE offered a February 7, 2011 Notice of Withdrawal from the Evaluation Process, presumably to demonstrate that the parent’s alleged withholding of consent for evaluation was tantamount to a withdrawal of the referral, it failed to offer any evidence of an informal conference and written agreement between the CSE and the parent to withdraw the referral as required by State law (Ex. SD-13, SD-17). See 8 NYCRR §§ 200.4(a)(7), 200.5(b)(1)(i)(c).
In the absence of a written agreement to withdraw a referral, and in the event that parental consent to an initial evaluation is not obtained within thirty (30) days of the date of receipt of the referral, State regulations require that:
the chairperson shall document attempts, including, but not limited to, telephone calls made or attempted and the results of those calls and correspondence sent to the parents and any responses received, made by the chairperson or other representatives of the committee to obtain parental consent, and shall notify the board of education that they may utilize the due process procedures described in Section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent.
8 NYCRR § 200.4(a)(8); see also 8 NYCRR § 200.5(b)(1)(i)(c).
Other than the February 7th Notice of Withdrawal, no evidence was offered by the DOE of any attempts to contact the parent (and the results of those attempts) to secure his informed written consent for evaluation prior to consent being given on August 23, 2011 (Exs. SD-13, SD-14).[6] Accordingly, I find that the CSE denied the student a FAPE for the period from September 1, 2011 through November 22, 2011.
2. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the credible testimony offered by Ms. and Ms. , I find that is an appropriate placement for the student because it provides him with specifically designed, individualized instruction to meet his unique educational needs (R. 105, 133, 152; Ex. SD-6 at 10).
Ms. , ’s Assistant Director for its , stated that there are approximately students aged five (5) through eleven (11) at the this academic year (R. 128-129, 134135). is a special needs school for students with (Ex. SD-7 at 1). Classes at the have approximately ( students taught by a head teacher and assistant teacher
(R. 129). Ms. stated that is appropriate for the student this year because he receives throughout the day in both individual and small group settings (R. 129, 133134).
Ms. stated that she is the student’s head teacher this academic year at , providing him with in writing and social studies (R. 143, 150). There are children in the student’s class (R. 143). Ms. breaks the class down for small group instruction two (2) - three (3) times per week and works daily with the student on an individual basis (R. 158). Ms. also coordinates her instruction with the student’s other content area teachers on a daily basis (R. 143-144). The student receives therapy two times per week in class and once weekly in a special location (R. 145).
To address the student’s distractibility, Ms. provides the student with constant redirection and prompting (R. 146-148). To assist the student with understanding abstract concepts, Ms. breaks down information for him and uses rereading and repetition (R. 147, 149). Ms. also uses graphic organizers to help the student with written language assignments (R. 151). Ms. stated that the student is making progress from her instruction, is capable of more independent reading and writing now than at the beginning of the school year, and is more self-confident (R. 151-152, 156, 159-160).
Accordingly, I find that the parent has met his burden to establish that is appropriate for the student for the 2011/12 school year.
3. Equitable Considerations
Given the absence of a genuine disagreement by the parents with the CSE’s proposed program, I find that the relevant equities do not support full tuition reimbursement.
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
I find that parents failed to provide the CSE with adequate written notice of their rejection of the student’s proposed program. See Berger v. Medina City Sch. Dist., 348 F.3d 513, 524 (6th Cir. 2003) (tuition reimbursement denied due to inadequate notice); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); In re Kingsway Reg’l High Bd. of Educ., 40 IDELR 112 (SEA NJ Nov. 19, 2003) (same). On August 16, 2011, the student’s father gave adequate written to the CSE that, given its failure to conduct any evaluation or follow up on my request for providing [the student] with special education services, I have no alternative but to unilaterally place my son at School for the 2011/12 school.” The student’s father further stated in the letter, however, that the student “will remain unilaterally placed at until the CSE is able to offer him an appropriate program/placement” (R. 98-99; Ex. SD-9 at 1).
Following the August 16th notice, the CSE convened on September 19, 2011, classified the student as one with a and recommended that he receive instruction in an integrated co-teaching class with related services of individual and group therapy (R. 81-82; Exs. SD-1 at 2, SD-3 at 12, SD-4). The CSE mailed a copy of the student’s IEP to the student’s father on December 13, 2011 (Ex. SD-4 at 1). Both the student’s mother (who attended the meeting) and the student’s father (who requested the hearing) agreed with CSE’s September 19th recommendations (R. 81, 8889, 103, 119-120; Ex. SD-3). Consequently, the parents did not, and indeed could not, provide the CSE with written notice following the September 19th meeting of their rejection of the proposed public program. Cf. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
Additionally, from the testimony of the student’s father, it appears that his November 16, 2010 referral of the student to the CSE was simply an effort to “game the system to extract free tuition for private school,” see Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1318 (11th Cir. 2003). The student first enrolled at for the 2010/11 school year (Ex. SD-6 at 1). The father stated, in relevant part:
We started the [2010/11] school year at and started to get the know the parents and friends of mine and whatnot, and they said you have certain rights when your child has special needs that event though he’s going to a private school, you can go to the city and try to get reimbursed for the education, so I started the process (R. 95).
Given the circumstances described above, I find that the relevant equities support a reduction of one-half of the student’s full tuition to for the 2011/12 school year (Ex. P-B).
D. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parent of having secured private therapy services (other than those provided by ) or for the student during the 2011/12 school year, or that the student was denied services by the DOE prior to the 2011/12 school year, the parent’s claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) within thirty (30) days of the date of this Order, the DOE shall reimburse the parent for all costs associated with the student’s transportation to and from the from September 1, 2011 through the date of this Order;
(2) from the date of this Order through June 30, 2012, the DOE shall provide the student with suitable transportation to and from the in a manner consistent with its obligations under Sections 3635 and 4402 of the New York Education Law;
(3) within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for one-half of all costs, including tuition, associated with the student’s private placement at the School for the 2011/12 school year; and
(4) the parent’s claim for reimbursement and/or compensatory additional services for related services is denied. Dated: March 20, 2012
____________________________
Impartial hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 19, 2012
PARENT
None
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request, 10/11/11, 4 pp. 2 Due Process Response, 10/21/11, 3 pp. 3 IEP, 9/19/11, 14 pp. 4 CSE Review Rationale, 9/19/11, 5 pp. 5 Initial Social History, 8/23/11, 3 pp. 6 Evaluation, March-April 2011, 22 pp. 7 Evaluation, April-May 2011, 6 pp. 8 Fax to , 1/21/11, 2 pp. 9 Letter to CSE Chairperson, 8/16/11, 1 p. 10 Appointment Letter, 1/11/11, 1 p. 11 Notice of CSE Review, 8/25/11, 1 p. 12 Request for Release of Records, 8/23/11, 1 p. 13 Notice of Withdrawal from Evaluation Process, 2/7/11, 1 p. 14 Consent for Initial Evaluation, 8/23/11, 1 p. 15 R-1 Notice of Referral Initial, 12/8/10, 1 p. 16 Referral Cover Sheet, 11/22/10, 1 p. 17 Letter to CSE Chairperson, 11/16/10, 1 p. 18 Tracking Sheet, 12/2/10, 1 p. 19 Omitted
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 2, 2012
PARENT
A Document Proof of Delivery, 11/17/10, 2 pp. B Contract, 4/28/11, 5 pp.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I Confirmation of Extension, 11/8/11, 1 p. II Confirmation of Extension, 1/19/12, 1 p. III Confirmation of Extension, 2/22/12, 1 p.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 39-40; Exs. IHO-I, IHO-II, IHO-III).
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a student’s educational performance.
[8] NYCRR § 200.1(zz)(11).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Although the parent’s October 11, 2011 transportation request was beyond the April 1st deadline to request such services (Ex. SD-1 at 4), see N.Y. Educ. Law § 3635(2), there was no testimony offered that this was the reason the DOE did not provide the student with transportation to and from during the 2011/12 school year. Even if such a defense had been asserted, the DOE would still have been required to provide transportation were a reasonable excuse offered by the parents for the late filing. See id.; see also Appeal of Davila (Uniondale Union Free Sch. Dist.), 41 Educ. Dept. Rep. 419, 420 (Comm’r of Educ. May 31, 2002).
[6] To the extent that the DOE makes reference in its post-hearing brief to an alternate procedure for securing informed written consent for evaluation following an initial referral from its standard operating procedures manual (“SOPM”), I find that the State regulations control.